A new requirement of ASTM Standard E1527-21 is an expanded conclusion statement that not only identifies any recognized environmental conditions or RECs, but also any “controlled recognized environmental conditions” or “CRECs” and any “significant data gaps.”  CRECs are defined in the earlier post in Part 1 of this series.  “Significant data gap” is a new term defined as “a data gap that affects the ability of the environmental professional to identify a recognized environmental condition.”   The term “data gap” remains the same as in the 2013 standard and is defined as: “a lack of or inability to obtain information required by this practice despite good faith efforts by the environmental professional to gather such information. Data gaps may result from incompleteness in any of the activities required by this practice, including, but not limited to, site reconnaissance (for example, an inability to conduct the site visit), and interviews (for example, an inability to interview the key site manager, regulatory officials, etc.).”  

In addition to stating whether any significant data gaps were identified in the conclusion, the report is to identify any significant data gaps and discuss them.  Section 12.5.1 provides:

“The report shall identify significant data gaps in the Findings section of the report. The resources and/or sources of information that were consulted to address the significant data gaps shall also be identified in the report. A data gap by itself is not inherently significant. For example, if a subject property’s historical use is not identified back to 1940 because of data failure …, but the earliest source shows that the subject property was undeveloped, this data gap by itself might not be significant. A data gap is only significant if other information and/or professional experience raises reasonable concerns involving the effects of that data gap on the ability of the environmental professional to render an opinion regarding whether conditions exist that are indicative of recognized environmental conditions or controlled recognized environmental conditions. For example, if a building on the subject property is inaccessible during the site reconnaissance, and the environmental professional’s experience indicates that the use of such a building often involves activity that leads to a recognized environmental condition, the inability to inspect the building would be a significant data gap listed in the Findings section and discussed in the Opinions section.”

This places a great deal of responsibility on the environmental professional to decide if a data gap is significant.  If one is identified, the user is advised to work with the environmental professional to try to find a way to address the concern or concerns resulting in the significant data gap as otherwise it raises a question as to whether the all appropriate inquiries standard has been met.  Take the example above where a building is inaccessible that the environmental professional believes she or he needs to tour to determine whether there is a REC.  If the building is not accessed and a release of hazardous substances is found post-closing from the building that would have been identified as a REC, it may be difficult to argue that the proper diligence was completed.  In such instance the buyer should work with the seller to obtain access to the building to allow the environmental professional to remove the significant data gap from the report pre-closing.