# Your Phase I Said “No REC.” The Regulator Disagrees. Now What? - Link: https://moran.rocks/phase-i-no-rec-derm-disagrees/ - Published: 2026-09-28T13:42:52-04:00 - Author: Nicholas Moran A clean Phase I doesn’t stop a regulator from opening a file on your property. Here’s why — and what to do about it. A property owner in Miami called me recently, frustrated. She’d had a Phase I Environmental Site Assessment done a while back. The report concluded that a historical use of the property didn’t amount to a Recognized Environmental Condition, or REC — there was no evidence a release had ever occurred. Case closed, or so she thought. Now the Miami-Dade County Department of Environmental Resources Management (DERM) wants to investigate anyway. She asked me to review everything and see if we could just shut it down. Here’s what I told her — and what every commercial property owner in Miami-Dade County needs to understand. ## A Phase I ESA Doesn’t Bind DERM A Phase I is one environmental professional’s opinion, prepared at one point in time, for one client’s transaction. When that professional concludes something is“ not a REC,” that conclusion binds exactly nobody else — least of all the regulator. DERM is free to look at the same property, the same history, the same data, and reach a completely different conclusion. To be fair to the preparer: no competent Phase I professional dismisses known contamination as “old” or “no big deal” — if there were known contamination, they’d have called it a REC. The judgment here was that the historical use left no evidence of a release. DERM looked at the same history and decided it wanted to investigate anyway. So if you’re sitting on a Phase I that says “no REC” and assuming DERM will agree— stop. That’s not how this works. ## The REC Definition Doesn’t Change — the Business Risk Does Here’s the practical takeaway, and I want to be precise about it: the definition of a REC is written down — it’s ASTM terminology — and it doesn’t get redefined by county. A historical use by itself is not a REC, in Miami-Dade or anywhere else. What does change by jurisdiction is how much evidence a regulator needs before opening an investigation. Some agencies need a lot. DERM needs less. And since the investigation happens on the owner’s dime, that lower threshold is a business risk — one that never appears in the REC determination. So the advice isn’t to treat everything as a REC. It’s to ask your consultant, directly, to walk through the business environmental risks that don’t qualify as RECs — the things a regulator in this jurisdiction might still make you spend money on. That’s how you get the complete picture instead of an expensive surprise. ## “But We’re on City Water” — That Doesn’t End the Discussion This was her next objection, and it’s a common one: nobody in the building drinks the groundwater. The property is on city water. So why does DERM care? Because DERM isn’t just worried about who’s drinking water on your property. DERM is charged with protecting the groundwater of the entire county — because Miami- Dade’s drinking water _is_ the groundwater. City water here is pulled directly out of the surficial aquifer. The groundwater beneath your property and the water coming out of taps across the county are the same resource. And that resource is extraordinarily vulnerable. The water table in much of Miami- Dade sits just three to six feet below the surface. Farther south toward the coastal ridge it drops deeper — maybe fifteen feet — but across most of the county, it’s shallow. Practically every buried tank in Miami-Dade County is sitting in groundwater or very close to it. So “we’re on city water” doesn’t answer DERM’s question. DERM’s question is about the aquifer everyone shares. ## What DERM Actually Wants to Know When DERM decides to investigate, they’re trying to answer a short list of questions: 1. **Is there contamination, and how much of it is there?** You determine this by doing an assessment — there’s no shortcut around it. 2. **Is it leaving the site?** Contamination that stays put is one problem. Contamination migrating onto neighboring properties is a much bigger one. 3. **Are your on-site practices spreading it?** This is the one owners miss. Even if contamination hasn’t left the site yet, your own drainage and site operations can move it around. If stormwater or drainage systems are pushing fresh water through a contaminated zone, you’re actively spreading the plume — and DERM will want that addressed. That third point is worth dwelling on, because it means the investigation isn’t just about what’s in the ground. It’s about what you’re doing on the surface, too. --- ## How It Starts: The Letter However your property comes under DERM’s scrutiny, it starts the same way: a letter. It’ll tell you that you have a notice of violation, or that contamination they have documentation of needs assessment or remediation. Or it can start from next door. DERM could be investigating contamination that has moved onto your property from a neighboring property. In that case the neighbor is likely the one paying for the assessment — but they’ll be prioritizing their interests, not yours. And if assessment gets done on your property and they find something they weren’t looking for — which, unfortunately, is common — you can end up under your own DERM enforcement. This is where it gets uncomfortable. The government can use heavy-handed persuasion to get assessment access onto your site. If you don’t consent to the neighbor conducting assessment, DERM may release the neighbor from responsibility for investigating on your property — and come after you instead. But you don’t want an undersupervised neighbor running loose on your property either: causing damage, accidentally contaminating it in the process, or discovering contamination nobody was looking for that does belong to your property. You need an experienced environmental consultant making sure the assessment doesn’t go beyond scope. We can help with that. I remember a case where a homeowner allowed assessment onto their property and nearly ended up under enforcement themselves — for BaPs that couldn’t be attributed to the offsite contamination everyone was chasing. I believe DERM eventually decided not to pursue the homeowner. But it could easily have gone the other way, and made life very difficult for them. ## What It Costs A small assessment can run you $10,000 — and that can be just one event with a few well installs. If it turns into multiple events, or many wells and many soil samples plus confirmation sampling, it can cost two to ten times as much. And it can even go further than that. I’ve worked on projects with nearly a million dollars of assessment. That money comes out of the owner’s pocket. Every well, every sample, every round— you pay whether or not they find anything. ## DERM Is Not Your Representative DERM is there to protect the public and the groundwater on the public’s behalf. That’s a real and legitimate mission. But understand this: DERM is not your personal representative. They will prioritize the public benefit at your expense — even though you are a member of the public. DERM goes by Spock rules: the needs of the many outweigh the needs of the few. Plan accordingly. --- ## You Can’t Just Shut It Down — So Get Ahead of It I understand the frustration. You paid for a Phase I, it told you everything was fine, and now the county wants you to spend money investigating a property you thought was clean. It feels unfair. But trying to shut it down with the old Phase I in hand doesn’t work, for the reasons above. The report’s shelf life is really only 180 days for transaction purposes anyway — but again, that means nothing to DERM. What does work is getting ahead of it: understanding what DERM is actually asking for, doing a proper assessment that answers their questions, and controlling the scope and cost of the investigation rather than letting DERM dictate it on their timeline. That’s where having someone in your corner who knows how DERM thinks pays for itself. _If DERM is asking questions about your Miami-Dade property, call Moran Rocks at( 786) 263-9185. We’ll review what you have, tell you straight what DERM is likely to require, and help you get through it without spending more than you need to._