Every person with environmental experience can describe how he or she reads environmental reports, but anyone who purports to write a primer on how to read and interpret an environmental report is being unrealistic and more likely making a vain attempt to attract your attention. The fact is, reading an environmental report involves experience and a good working relationship with clients, and the first step is to discuss the client’s expectations.
Environmental reports mean different things to different people, at different stages in a transaction and at different stages of property ownership (sale, lease, security or sale). Scientists are generally ineffective lawyers, but remarkably talented at identifying conditions. However, whether those conditions amount to liability or regulatory responsibility is a legal question requiring the legal skill, education, training and experience of an environmental lawyer.
Just as scientists and engineers are not lawyers and should not opine as to statutory environmental cleanup liability (or, the “innocent purchasers” defense: concluding that the report qualifies as an all appropriate inquiry to satisfy one of the statutory exemptions described in federal and state law), a group of scientists should not be considered the final word on the adequacy of the scope of the investigation. As lawyers, let’s examine what we are told.
A Recognized Environmental Condition (REC) is the presence or likely presence of a hazardous substance or petroleum under conditions that may indicate a release, a past release, or a material threat of a release into structures or on the property or into the ground, groundwater, or surface water at the property. This is the conclusion that requires further analysis. Again, the ultimate conclusion of liability rests with the lawyer, and the lawyer’s analysis of the evidence that supports that conclusion.