The REC the Client Wants Deleted
You are the environmental professional of record on a Phase I ESA prepared under ASTM E1527-21 for a 4.2-acre site being refinanced. The draft identifies a recognized environmental condition: a 1978–1994 drum storage and parts-washing area at the northwest corner. A 1999 Phase II at the parcel reported TPH at 1,800 mg/kg and PCE at 0.9 mg/kg in soil from 3 to 6 ft below grade; no cleanup was documented.
The lender's deadline is 48 hours. The borrower's attorney emails: "Delete the REC paragraph. That report is 25 years old and outside the 5-year window, and the consultant who wrote it is retired. Also, please sign the certification that you conducted the site visit - I know your junior did it, but the bank only accepts the EP's signature." While pulling records, you find that your firm's 2017 Phase I on the same parcel, prepared for a different client, never mentioned the drum area. That report was relied on by a lender.
1. Do you remove the REC? Explain the reasoning and the applicable framework.
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No. The REC stays.
Under ASTM E1527-21 and the AAI rule at 40 CFR 312, a recognized environmental condition is the presence or likely presence of a hazardous substance or petroleum product indicating a release or likely release. The age of the source data is not a basis for deleting it. The "five-year" concept people usually half-remember refers to report currency and the data-review requirements, not to a rule that old data becomes irrelevant. E1527-21 requires the environmental professional to identify and evaluate historical sources and to disclose significant data gaps, and a 1999 report with detections and no documented closure is exactly the kind of information the standard exists to surface.
If the contamination was closed with a state program and left in place under controls, the right label is a controlled or historical REC, with the closure documents and any land-use restrictions cited. That is a change in classification supported by evidence, not a deletion.
Consequences of deleting it: the report is misleading, the borrower loses the AAI/innocent-landowner defense it is paying for, the lender is exposed, and you and your firm face negligence, fraud, and state board discipline. Tell the attorney in writing that the REC remains and offer to discuss the classification if closure documentation can be produced. Do not negotiate the deadline; negotiate the scope.
2. How do you handle the certification and site-visit request?
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You sign only what is true.
The ASTM/AAI certification attests to your qualifications as an environmental professional and to your involvement in and responsibility for the report. If the certification states or implies that you personally conducted the site visit, and your junior did, signing is a misrepresentation, even if your junior is competent and you reviewed the file.
Options:
- Conduct the site visit yourself within the 48 hours. A 4.2-acre parcel is feasible; you must walk the northwest corner, observe current conditions, and confirm the drum area features.
- Ask the lender for a short extension so the visit can be done properly.
- Sign a certification worded accurately, if the lender's form and your firm's policy allow it, that reflects your role in directing and reviewing the work.
What you must not do is sign a false statement to meet a deadline or a bank form. Also note that merely reviewing a junior's photographs is not the same as the EP's independent inquiry, and a file review without the visit weakens the report's defensibility.
Document your communications in the project file: the request to sign inaccurately, your refusal, and the alternative you offered.
3. What do you do about the firm's 2017 report that omitted the drum area?
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Two obligations run in parallel: the current report and the prior report.
Current report. The 2017 report is now part of your knowledge and must be considered in the data review for the new Phase I. You do not need to attach the prior client's report, but you must describe the condition based on your own independent sources: historical aerials, Sanborn maps, fire insurance records, the drum area's visible footprint, and the 1999 data. Disclose the data gap and note the prior report if it is materially relevant.
Prior report. A materially inaccurate report that a lender relied on creates a real problem. Raise it internally with the principal who signed it and the firm's ethics or legal counsel. The likely course is to notify the prior client that the report contains an error and issue a corrected or supplemental report to the lender. Confidentiality obligations do not permit you to conceal a known defect from a party that relied on your work; they govern how, not whether, you correct the record.
Do not use the prior report's confidentiality as a reason to leave the drum area out of the new report. That would convert an old error into a current misrepresentation.