Kevin S. Kennedy Consulting, LLC

RECs and recommendations

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Courtesy of Courtesy of Kevin S. Kennedy Consulting, LLC

As environmental consultants, we all provide our clients with recommendations following a site inspection, site investigation, removal action or most any type of work we do on a property. Phase I Environmental Site Assessments (ESAs) often differ in this regard as many clients do not want recommendations, at least not included as part of the written report. I personally do not provide recommendations in my Phase I ESA reports, unless specifically requested. I do, however, provide verbal recommendations or a separate letter containing recommendations, depending on the client’s wishes.

But what I want to talk about here is how recommendations following a Phase I Environmental Site Assessment can vary, depending upon whom one is working for. Now don’t get me wrong. I am by no means implying that there should ever be any compromise of one’s professional judgment, integrity or ethical standards depending on the client. Absolutely not, no, never! But - recommendations can, and should, be specific to your client’s needs and situation and this means they can vary, and often dramatically, from client to client.

An ESA is most commonly requested as part of the due diligence process of a commercial property transaction. The purchaser of the ESA, often the User, is usually either the seller of the property, or the purchaser of the property, or their representatives (realtors, lenders, etc.). Regardless of who requested the ESA and who is paying for your professional services, a qualified, reputable environmental professional (EP), in producing the ESA report, will identify recognized environmental conditions as he or she determines them. A REC, once identified, is a REC, regardless of the user. Although EPs often disagree in what they might identify as a REC (just see the discussion thread in the Environmental Professionals Group on LinkedIn in response to my last article “A REC is REC, Right? Wrong!, to see the variety of opinions on a single REC) , I think we all agree that if we identify a REC at a site for Client A, the same REC will be identified to Client B, Client C or anyone else who might ask our opinion. This is how it should be, however; let’s take the following example to show just how varied our recommendations regarding the REC can be.

Let’s take, by way of an example site, a 15-year old auto repair shop as the subject of an ESA. The repair shop has multiple auto service bays, each with hydraulic lifts, the type with subsurface hydraulic fluid reservoir sumps. I believe most EPs would identify the presence of these sumps as a REC, regardless if they were hired by the purchaser of the property, or the seller (maybe some wouldn’t, but lets assume for the sake of this discussion we are all in agreement that the old hydraulic lift’s subsurface hydraulic fluid reservoirs constitute a REC).

If hired by the owner/seller of the property, I would recommend that they do nothing further with regards to this hydraulic sump REC i.e., no follow up investigation is necessary (assuming, of course, the sumps were properly installed, registered (if required by a city or state agency), proper maintenance records in place, there has been no indication of any problems with the lifts and no reason to suspect a release or leak). With no spills, stains, mysterious losses of hydraulic fluid or no problems with the operation of the lifts, there is no reason to suspect a problem and therefore no reason to go looking for one. However, if I were hired by the potential purchaser of the property, or their representative, I would, regardless of the condition of the lifts, recommend that they at least consider a Phase II site investigation with focused borings and soil sample collection, around the hydraulic sumps to ensure, as much as reasonably possible, that there has not been a release for any of the sumps and that they are not purchasing a future clean up action liability (this could also aid in establishing the environmental baseline of the property for the new owner).

In both cases, working for either the prospective purchaser or owner/seller, the sumps are a REC and the ESA report would list the sumps as a REC, but the recommendations provided for each are completely different.

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